Citation Nr: 0507160
Decision Date: 03/11/05 Archive Date: 03/21/05
DOCKET NO. 02-06 834 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
Entitlement to an initial compensable evaluation for right
ear hearing loss disability.
Entitlement to an initial compensable evaluation for
cholesteatoma due to a perforated tympanic membrane.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. B. Redman, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1942 to
August 1943. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a November 2001 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in Pittsburgh, Pennsylvania.
When this case was last before the Board, it was remanded for
a hearing. In March 2004, a hearing before a hearing officer
was held at the RO. A transcript of that hearing is of
record. At that hearing the veteran raised a claim for
service connection for hearing loss disability of the left
ear. In an August 2004 rating decision, the RO denied
service connection for this disability. The veteran filed a
timely notice of disagreement in January 2005. The RO
subsequently issued a statement of the case in January 2005.
In a cover letter sent with the statement of the case, the
veteran was informed of the requirement that he submit a
timely substantive appeal to perfect his appeal with respect
to this new issue. To date, no substantive appeal has been
received. Therefore, the Board has concluded that the
veteran is not currently seeking appellate review with
respect to this issue.
The Board also notes that entitlement to a 10 percent
evaluation based upon multiple, noncompensable service-
connected disabilities was granted in a November 2001 rating
decision.
FINDINGS OF FACT
1. The veteran has level III hearing impairment in both
ears.
2. The veteran's cholesteatoma due to perforated tympanic
membrane is not manifested by suppuration or aural polyps.
CONCLUSIONS OF LAW
1. The criteria for a compensable evaluation for right ear
hearing loss disability have not been met. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code
6100 (2004).
2. A compensable schedular evaluation for cholesteatoma due
to perforated tympanic membrane is not warranted. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic
Code 6200, 6211 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
As a preliminary matter, the Board notes that VA's General
Counsel has held that
the notification requirements of the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000), [codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002)] and the regulations
implementing it are not applicable to initial evaluation
issues such as the issues currently before the Board.
VAOPGCPREC 8-2003 (Dec. 22, 2003). The Board is bound by
this opinion. See 38 U.S.C.A. § 7104(c) (West 2002).
In any event, the record reflects that through the statement
of the case, supplemental statement of the case, and letters
dated in February, March, July, August, and October 2001 from
the RO, the veteran has been informed of the evidence and
information necessary to substantiate his claims, the
information required of him to enable VA to obtain evidence
in support of his claims, the assistance that VA would
provide to obtain evidence and information in support of his
claims, and the evidence that he should submit if he did not
desire VA to obtain such evidence on his behalf. Although VA
did not specifically inform the veteran that he should submit
any pertinent evidence in his possession, it did inform him
of the evidence that would be pertinent and that he should
either submit such evidence or provide the RO with the
information necessary for the RO to obtain such evidence.
The record also reflects that all pertinent available service
medical records and all available post-service medical
evidence identified by the veteran have been obtained. In
addition, the veteran has been afforded an appropriate VA
examination. He also testified before a hearing officer at
the RO. The veteran has not identified any outstanding
evidence or information that could be obtained to
substantiate the claims. The Board is also unaware of any
such outstanding evidence or information.
Accordingly, the Board is satisfied that no further
development of the record is required with respect to these
claims.
Factual Background
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2004)
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board
has reviewed all evidence of record pertaining to the history
of the service-connected disabilities. The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes. Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to these disabilities,
except as noted below.
Some of the veteran's service medical records were presumably
destroyed in the accidental fire at the National Personnel
Records Center in 1973. The available service medical
records show that in July 1943 the veteran had a large
perforation in his right ear. An August 1943 service medical
record notes that the veteran had otitis media of the right
ear, which was both chronic and purulent. The veteran stated
that he had suffered from this condition for fifteen years.
Surgeon General's reports note the veteran's diagnosis of
chronic otitis media. The veteran was discharged for
disability not incurred in the line of duty.
An April 2001 VA outpatient treatment record notes that the
veteran's right tympanic membrane was virtually absent and
there were a bony deformity and small evidence of cerumen.
The veteran was referred for manual removal of the cerumen
because the tympanic membrane damage did not allow for
flushing of the ears.
A July 2001 VA audiology note states that the veteran was
seen for a hearing aid evaluation. Another July 2001 VA
audiology note states that the audiogram showed bilateral
sensorineural hearing loss with a slight conductive component
in the right ear. The veteran reported that his right ear
drains when he gets an upper respiratory infection. The
right ear revealed a small amount of cerumen in the external
auditory canal; this was removed. A cholesteatoma was found.
The report of a September 2001 VA examination notes that the
veteran's mastoid tips, pinna, and external auditory canals
were normal. The right ear showed a whitish lesion, which
was visible behind the tympanic membrane in the anterior
portion. Audiogram results were:
1000
2000
3000
4000
Average
Right
Ear
65
65
75
75
70
Left
Ear
60
60
70
70
65
Discrimination scores were 88 percent on the right side and
84 percent on the left side. The otoscopy showed that the
right ear had drainage and blood in the canal so that the
examiner was unable to see the eardrum.
Analysis
Disability evaluations are determined by the application of a
schedule of ratings, which is in turn based on the average
impairment of earning capacity caused by a given disability.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2004). Separate
diagnostic codes identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In every instance where the schedule does not provide a
noncompensable evaluation for a diagnostic code, a
noncompensable evaluation will be assigned when the
requirements for a compensable evaluation are not met.
38 C.F.R. § 4.31.
In addition, when there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 4.3.
Evaluations of hearing loss range from noncompensable to 100
percent, based upon organic impairment of hearing acuity as
measured by the results of controlled speech discrimination
tests, together with the average hearing threshold level as
measured by pure tone audiometry tests in the frequencies
1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. §
4.85(a) and (d) (2004).
To evaluate the degree of disability for service-connected
bilateral hearing loss, the rating schedule establishes
eleven (11) auditory acuity levels, designated from level I,
for essentially normal acuity, through level XI, for profound
deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2004).
The assignment of disability ratings for hearing impairment
is derived by a mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations are rendered. See Lendenmann v. Principi, 3 Vet.
App. 345, 349 (1992).
When the pure tone thresholds at the four specified
frequencies (1000, 2000, 3000, and 4000 hertz) are 55
decibels or more, or when the pure tone thresholds are 30
decibels or less at 1000 Hz and 70 decibels or more at 2000
Hz, the rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. That
numeral will then be elevated to the next highest Roman
numeral. 38 C.F.R. § 4.86. The Board notes that the
veteran's hearing loss disability does not comport with
either of these exceptional patterns of hearing impairment.
Examinations are conducted using the controlled speech
discrimination tests, together with the results of the
puretone audiometry test. The horizontal lines in table VI,
referenced in 38 C.F.R. § 4.85, represent nine categories of
percent of discrimination based upon the controlled speech
discrimination test. The vertical columns in table VI
represent nine categories of decibel loss based upon the
puretone audiometry test. The numeric designation of
impaired efficiency (I through XI) will be determined for
each ear by intersecting the horizontal row appropriate for
the percentage of discrimination and the vertical column
appropriate to puretone decibel loss; thus, for example, with
a percent of discrimination of 70 and average puretone
decibel loss of 64, the numeric designation is V for one ear.
The same procedure will be followed for the other ear. The
numeric designations are then applied to table VII, also
referenced in 38 C.F.R. § 4.85, to determine the veteran's
disability rating.
In considering the veteran's claim of entitlement to a
compensable rating for right ear hearing loss disability, the
Board notes that the findings on the September 2001
audiometric evaluation are indicative of level III hearing
impairment in the right ear. Level III hearing impairment in
one ear with normal hearing in the other ear is considered
noncompensably disabling. 38 C.F.R. § 4.85, Diagnostic Code
6100.
Prior to December 6, 2002, where service connection has been
granted only for defective hearing involving one ear and the
claimant does not have total deafness in both ears, the
hearing acuity of the nonservice-connected ear is considered
to be normal. 38 C.F.R. §§ 3.383, 4.85. Effective from
December 6, 2002, 38 C.F.R. § 3.383 was amended to provide
that where hearing impairment in the service-connected ear is
compensable to a degree of 10 percent and the hearing
impairment in the other ear is considered a disability under
§ 3.385, the hearing impairment in the non service-connected
ear will be considered in evaluating the service-connected
disability. 69 Fed. Reg. 48148-50 (August 9, 2004) [to be
codified as amended at 38 C.F.R. § 3.383(a)].
As noted above, the hearing impairment in the veteran's right
ear is not to a compensable degree. Therefore, the hearing
impairment in the non service-connected ear is not for
consideration in evaluating the service-connected disability.
In any event, the hearing impairment in the veteran's left
ear is also level III. Level III hearing impairment in both
ears is considered noncompensably disabling. 38 C.F.R.
§ 4.85, Diagnostic Code 6100. Therefore, the service-
connected right ear hearing impairment is properly evaluated
as noncompensably disabling.
With respect to the veteran's claim for entitlement to a
compensable rating for cholesteatoma due to a perforated
tympanic membrane, the medical evidence fails to show that
the veteran has any associated pus or aural polyps, which are
necessary for a 10 percent rating under Diagnostic Code 6200.
Under that code, chronic suppurative otitis media,
mastoiditis, cholesteatoma, or any combination thereof,
warrants a 10 percent evaluation during suppuration, or with
aural polyps. Otherwise, a noncompensable rating is
assigned. 38. C.F.R. § 4.87, Diagnostic Code 6200 (2004).
Because the veteran does not have aural polyps and he does
not experience suppuration, a compensable rating is not
warranted.
The Board has also considered whether a compensable rating
could be assigned under any other diagnostic code, but has
found none. In this regard, the Board notes that perforation
of the tympanic membrane warrants only a noncompensable
rating. 38 C.F.R. § 4.87, Diagnostic Code 6211.
Finally, the Board has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R.
§ 3.321(b)(1). The veteran has not required frequent
hospitalization for either his right ear hearing loss
disability or the cholesteatoma and the manifestations of
such are consistent with the assigned schedular evaluations.
In sum, there is no indication that the average industrial
impairment from either disability would be to a compensable
degree. Therefore, referral of this case for extra-schedular
consideration is not in order. See Floyd v. Brown, 9 Vet.
App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).
ORDER
Entitlement to an initial compensable evaluation for right
ear hearing loss disability is denied.
Entitlement to an initial compensable evaluation for
cholesteatoma due to perforated tympanic membrane is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs